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WASHINGTON � State bar ethics committees, facing numerous requests for guidance from lawyers, increasingly are examining the ghostly footprints of electronic metadata � often with widely varying results. “When I first gave a lecture on metadata four years ago, there was only the New York ethics opinion,” recalled legal ethics scholar Andrew M. Perlman of Suffolk University Law School. “In the last year, there has been four or five more. In the next three to four years, I expect we will see an explosion of opinions. This is just beginning.” Today, Perlman and other legal ethics scholars, as well as lawyers specializing in legal technology, report they still encounter large numbers of lawyers who ask: “What in the world is metadata and why should we be worried?” Metadata, often described as “data about data,” is electronically stored information that generally is not visible from the face of a document that has been printed out, or as first seen on a computer screen. Embedded in the software, metadata give information about the creation or modification of the document � information which often is mundane but at other times, can be quite significant and perhaps even privileged. By “mining” the metadata in a document, someone may be able to identify the document’s author, changes made during various stages of its preparation, comments made by others who reviewed the document and other documents embedded within the document. As the District of Columbia Bar recently explained: “A lawyer who is preparing a document may electronically circulate the document in draft form among other lawyers in the firm for their review and comment. The other lawyers may insert their suggested revisions and other comments, some of which might address the strengths and weaknesses of the client’s position. If the final version of the document is electronically transmitted to opposing counsel, it may be possible for opposing counsel to discover the comments. “The sender of the document may not be aware of the metadata embedded within the document, or that it remains in the electronic document despite the sender’s good-faith belief that it was ‘deleted.’ “ To the uninitiated lawyer, legal secretary or other firm member, metadata are simply unknown, but to the tech-savvy computer user, they are well known and a click or two away. “The issue splitting the states is whether you can look for metadata in another lawyer’s documents, and if you do look and find it, do you have to notify the other lawyer,” said legal ethics scholar David Hricik of Mercer University Walter F. George School of Law. What you don’t know . . . Lawyers in large firms with information technology personnel are more likely to be aware of metadata than others, according to Hricik, who, with Chase E. Scott, has co-authored an extensive article on metadata in the February Georgia Bar Journal. But, he added, there have been recent examples of even sophisticated big firms releasing metadata accidentally. “I don’t know if their software system failed or what, but the tools we have for removing metadata or preventing its release are not foolproof and probably never will be,” said Hricik. Examples of unintended releases, he offered, include one firm that posted a Word document online and, with two knowledgeable “clicks,” a savvy viewer was able to discover that the client initially intended to sue someone other than the named defendant. In another case, a motion in a national security lawsuit was posted with what the lawyers thought had been redacted sensitive information. That information, said Hricik, was easily uncovered by metadata-savvy viewers. “It can hurt you, what you don’t know,” said Hricik. “There’s a lot of information that can get out. I’m also concerned on the secretarial side. Secretaries may have a lot of information in files to be e-mailed out but, because they are unaware of metadata, they don’t realize the potential problems.” Lucian Pera of Adams and Reese’s Memphis office, who counsels lawyers and law firms on ethics, malpractice and loss prevention, agreed. “To the lawyer who says, ‘I don’t send stuff out that has metadata,’ I say, ‘Do you have a secretary, and what about others at the firm?’ It’s just one of those areas you have to be careful about. There’s a whole list of things today we have to be careful about, including hanging up the speakerphone correctly.” On the document-receiving end, why would a lawyer intentionally hunt for metadata? “You have to have a certain frame of mind to want to look for it,” said Thomas Mighell, senior counsel and litigation technology support coordinator at Dallas’ Cowles & Thompson. “When I get a document in Word or an Excel spreadsheet, the first thing I’m going to think is not ‘let me go check and see if they had track changes turned on that maybe I can take advantage of.’ I imagine there will be lawyers out there for whom it will be the first thing they think of.” Mighell did offer a case at his own firm in which the other side had stalled and stalled in producing documents. When the other side finally turned them over, the lawyers apologized, saying they had just finished and scanned them, recalled Mighell. “We checked the metadata and saw that they were actually done a year before,” he said. “I think it’s going to come up only when a lawyer thinks looking at metadata may give an extra advantage, or when the lawyer thinks something is going on in his case and he’s not sure about it.” Pera of Adams and Reese recalled an article published several years ago about metadata that called that area of legal practice “a hopeless muddle.” “Well, now it’s just a muddle,” he said. “It’s ridiculously complicated. Given the state of the law, I think it’s just a bad idea to mine someone else’s metadata.” All of the state bars to address the metadata issue agree that a sending lawyer has a duty to protect confidential or privileged information from being disclosed, but they split on the duty of a receiving attorney. The New York State Bar Association in 2001 determined that lawyers may not “intentional[ly] use . . . computer technology to surreptitiously obtain privileged or other confidential information” of an opposing party. Florida, Alabama and most recently Arizona have joined New York in holding that the recipient lawyer has a duty not to “mine” the document for metadata or otherwise engage in conduct that amounts to an unjustified intrusion into the client-lawyer relationship that exists between the opposing party and his or her counsel. Florida states that a lawyer who inadvertently receives information via metadata in an electronic document should notify the sender of the information’s receipt. The District of Columbia holds that a receiving lawyer is prohibited from reviewing metadata sent by an adversary only when he or she has actual knowledge that the metadata were sent inadvertently. If the recipient lawyer has actual knowledge, he or she may not review the metadata without first consulting with the sending lawyer. Maryland and the American Bar Association have concluded that their ethical rules do not prohibit the mining of metadata. Pennsylvania takes something of a middle approach. Each attorney must determine for himself or herself whether to use the metadata contained in documents and other electronic files based upon the lawyer’s judgment and the particular factual situation. Factors to consider include the nature of the information received, how and from whom the information was received, attorney-client privilege, work-product rules, common sense, reciprocity and professional courtesy. “I think the Pennsylvania opinion is singularly unhelpful,” said Pera. “I still wouldn’t know what to do if I were a Pennsylvania attorney.” Suffolk’s Perlman said he prefers a middle-ground approach, but conceded that Pennsylvania’s opinion provides little guidance to its lawyers. “To just have a broad brushstroke that says all metadata is OK to look at or is off limits doesn’t appreciate the many circumstances in which this can arise,” he said. “There needs to be an opinion that fleshes out the many different situations in which electronic documents are sent to an adversary. Where metadata is clearly not privileged, it shouldn’t be ethically problematic.” Mercer’s Hricik said the Maryland and ABA position is wrong and too permissive. “I personally think that, for now, you shouldn’t look for it in a document in a transaction,” he said. “The only reason you’re looking is because the other lawyer didn’t realize it was there and you’re going to learn what you shouldn’t know. That to me is the end of it. “Are we really the kind of profession where, when someone makes a mistake with technology, we have to cram it down their throat? The Maryland and ABA position allows lawyers who have more knowledge about technology to take advantage of those who don’t.” Most of the state opinions do not distinguish between documents transferred between lawyers and those ordered to be produced in discovery. In discovery, Hricik and others said, it would be unethical to remove metadata from documents when the information is relevant and discoverable. At the federal level, the metadata situation is not much clearer, although the new rules on electronic discovery have raised the profile of metadata, noted Mighell. “They allow the requesting party to ask for documents in a format of their choice,” he said. “I don’t know if you can ask for metadata, but my recommendation would be to ask for a document in its native file, with metadata intact. Then the lawyers have to go and squabble over whether they really do want the metadata.” There have been several opinions in the federal courts, he added, that noted how expensive it is to extract metadata. Those courts tell the requesting parties to make a showing that it’s important and the need will outweigh the huge cost. For now, Pera said, he counsels the uninitiated lawyer and law firm to go online and search for “metadata scrubbers.” It will open up software for removing metadata, which, as a matter of loss prevention, law firms probably need to have installed on their computers. “We may still not know enough about e-mail, Word documents, Excel spreadsheets, to really safely use them,” added Pera. “But lawyers are going to have to understand the technology they use or they won’t be competent in practicing law or protecting their confidential info. That’s why you have to know what a metadata scrubber is.”

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